Nothing But the Facts (Extract)

By ARYE CARMON
Extract from an article in Issue 23, March 3, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Report click here. The Winograd Commission did not call for Ehud Olmert's ouster, and quite rightly so. The province of inquiry commissions should be to establish facts, not to determine the national leadership. In Israel, though, this is by no means a foregone conclusion. On the contrary, Israeli commissions of inquiry tend to be too intrusive and to usurp democratic functions that belong properly to the public and its elected officials. Indeed, the place of commissions of inquiry in the Israeli democratic landscape is unique. In English-speaking countries like Britain, Canada and Australia, which also have laws providing for the establishment of such commissions, the inquiry is usually restricted to establishing the facts. Very seldom do their reports incorporate conclusions or recommendations. These are left to the public and the democratic process. In comparison, the Israeli version has greater preponderance, both quantitatively and qualitatively. And the main difference is in the pride of place accorded its recommendations and verdicts on key players. There are two main reasons for this uniqueness: the aggressive nature of Israeli political culture and the inherent weakness of the mechanisms for supervision and oversight of the executive branch, like the Knesset and public opinion. In the case of the Winograd Commission, Israel's feisty political culture came to the fore in the media's sensationalist and inflammatory coverage for weeks before anyone knew what was written in the report. This created the impression that the debate was not really about clarifying areas of responsibility or elucidating systemic failures, but rather about finding culprits, not to mention character assassination and demonization of elected officials. All this is symptomatic of a deep malaise in our political culture. Our democracy is being increasingly undermined by an acute "anti-political sentiment," a disaffection from politics that is eating away at our civil society. For the past several years, there has been a continuous erosion of public confidence in all our democratic institutions. Evidence of this can be seen in the declining turnout in national elections and in the deterioration in the quality of people in public service, including the army and the police. The political process, the living soul of democracy, is being undermined by this alienation from politics. And the proliferation and prominence of commissions of inquiry is further evidence of the public's readiness to surrender its decision-making role in the political process. Other democracies, which do not make such extensive use of commissions of inquiry, acknowledge that the right to appropriate authority and responsibility from elected officials belongs solely to the public that granted them those powers. In other words, that expropriation of authority and responsibility should be effected only through the political process, for example, through new elections. In Israel, however, there is an unhealthy symbiosis between the growing anti-political sentiment and the anticipation that inquiry commissions will cause heads to roll. The commissions of inquiry seem to have entered a vacuum created by a combination of government instability and weakness of the regular mechanisms of supervision and oversight. Although commissions of inquiry are not meant to be a substitute for the Knesset and public opinion, the establishment of a commission inevitably creates an alternate political arena. Indeed, people tend to hang on to its normative pronouncements, instead of using their own judgment and expressing their own opinions as befits a working democratic culture. Indeed, commissions of inquiry augment an undemocratic trend of passing the buck to committees of experts. I argue that commissions of inquiry are professional, appointed bodies charged with the establishment and analysis of facts, and that drawing conclusions and making recommendations should be outside their purview. In my view, it is clearly inappropriate for an appointed, ad hoc body to decide matters that require political or public decisions. When a commission of experts reaches conclusions and formulates recommendations, it usurps normative and political functions that should be outside the compass of its quasi-judiciary mandate to investigate and establish the facts. By drawing conclusions and making recommendations, commissions of inquiry become part of an unhealthy process of "the legalization of politics" in Israel, as they blur the distinction between legal and public norms. Instead of being judged by the public as they should be, elected officials, including holders of the highest public office, are judged through a legal prism. Moreover, because of the commissions' legal character, the public tends to attribute to their recommendations the binding character of a legal verdict, even though, in fact, such recommendations have no legal validity whatsoever. The end result is that public officials are judged by legal criteria, guilty or not guilty, rather than by the more appropriate political concepts of public responsibility and accountability. In conclusion, I can only urge that we formalize the position taken by the late Haim Zadok, the former justice minister and eminence gris of Israeli politics: "…the commission's function is to establish the facts: that is, not to draw or even to recommend conclusions, but to establish facts… it is not its business to decide or even to recommend what should be done with its findings; that is the task of the government, the parliament and public opinion. The commission's task is to establish facts, nothing more."• Dr. Arye Carmon is president of the Israel Democracy Institute. Extract from an article in Issue 23, March 3, 2008 of The Jerusalem Report. To subscribe to The Jerusalem Report click here.